Posted
by
timothy
on Friday October 08, 2010 @08:08AM
from the difference-between-law-and-legislation dept.

Hugh Pickens writes "Ars Technica reports that with the release of the 'near-final' ACTA text (PDF), it is becoming clear that the US has caved on the most egregious provisions from earlier drafts (advocating 'three strikes' regimes, ordering ISPs to develop anti-piracy plans, promoting tough DRM anticircumvention language, setting up a 'takedown' notification system, ordering 'secondary liability' for device makers) and has largely failed in its attempts to push the Digital Millenium Copyright Act (DMCA) onto the rest of the world. Apparently, a face-saving agreement is better than no agreement at all — but even the neutered ACTA could run into problems, with Mexico's Senate recently approving a nonbinding resolution asking for the country to suspend participation in ACTA, while key members of the European Parliament have also expressed skepticism about the deal."

For software patents, the key thing to check is if ISPs will have liability for not removing stuff that a patent holder claims violates his patents. If that's still there, then we'll get DMCA take-down notices for software patents. More on the problem here:

First line of page 8. The general worry would be that patent holders would gain the power to, by sending a letter, turn ISPs or other parts of the distribution chain from innocent bystanders into entities that are "knowingly" taking part in the infringement. But, this text doesn't look too worrying - anyone agree/disagree?

Each Party shall provide that in civil judicial proceedings, its judicial authorities
shall have the authority to order the infringer who knowingly or with reasonable
grounds to

Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.

IANAL but doesn't that basically says that if you're an ISP and you let, for example torrent activity happen on your netwok, then you can also be held responsible and made to cough up some dough? Most

It depends. In the EU, ISPs are protected by "mere conduit" status which says they're not responsible for everything that flows through their wires. I have a vague recollection that there is similar in the USA's DMCA. So ISPs aren't engaged in any infringing activity, so this part of ACTA doesn't apply to them.

At the moment ISPs aren't in the EU, I am aware of that. What I was trying to suggest here is that as soon as ACTA is implemented, ISPs could be held at court by the above rule. But as I said IANAL hence I was just popping a question rather then stating a fact.

What we really need is someone to keep up with the most recent proposals and break everything down from legalese into talking points more understandable to the layman. That's how we'll get people to care about it.

{US: For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section.}

Patents was one of the sticking points, the US rep wanted to keep patents out but the Mexicans wanted patents in.

I say all of it needs to be revealed to everyone. Of course it won't be because they people would oppose it. Notice how the second article says it's an "executive agreement" instead of a "treaty." [techdirt.com] An agreement doesn't need senate approval.

Good news, as far as I'm concerned. Wouldn't it be ironic if other, more sane countries started exerting international pressure on the US to get rid of some of our more draconian copyright and patent regulations? That'd be a hoot.

I think you've misunderstood the sense of the "cave" - it was the US government that was pushing for the more draconian measures (the RIAA/MPAA line), not for sanity and consumers' rights in the first place. The "cave" is in fact an acceptance that the rest of the world thinks that the DMCA-like measures etc are dangerous/stupid.

One thing your representative democracy [metagovernment.org] page fails to mention as of right now is the news media's conflict of interest. Candidates for legislative positions in a representative democracy use the news media to reach their constituents. However, the news media are under the same ownership as publishers of fictional entertainment products. All the major broadcast TV networks and cable news networks share a corporate parent or controlling investor with one of five MPAA studios [pineight.com] This means a candidate who advocat

big companies just don't to pay for Health Care now but in 2014 then people will have more choice.But how can the big McDonalds have so much over head in there min med plan? and THE Republican ARE THE ONES who WANT TO KILL THE Health Care bill so ANY THING CAN BE A pre existing conditions so if you get sick and run up a big bill they have a way out. SELL OVER STATE LINE will just lead to ONE STATE being the only place to get Health Care and it will be the one that lets them have lowers forced stuff they mu

Big agree there, I really don't understand why even the draft phases of a law would be kept secret from the citizens it is intended to be applied to.

So the citizens don't have a chance to say they don't agree with the law until things they are already doing become illegal?

Basically it's eroding any actual "fair use" that anybody ever had, and making it so that you more or less need the permission of media companies to use the internet or own a computer. If they don't like you, they'll take it away from you.

People don't actually want the provisions in this awful treaty, and it makes no sense whatsoever for every government in the world to be clerks for copyright holders. This really does subjugate personal/government interests to those of corporations.

The same reasons that the text of Bills in Congress is often kept closely guarded for months or years until the Bill is formally introduced:

1) Politicians don't want to tout a bill that lowers taxes and saves puppies only to have the puppy provision removed before the Bill reaches a committee. At least if the committee removes it he has someone else to blame.

2) Politicians also don't want to deal with the blowback for unpopular pieces of a bill until they know it actually has to be in there.

In fact, it was never alive. Representative Republics are not Democracies. Frankly, Democracy should scare the hell out of you. Do you want the people watching Jersey Shore directly enforcing their will upon you?

The picking of nits aside... I'm starting to believe the loonies who buy tons of desolate land and huddle in their basements while armed with enough firepower to end any zombie uprising aren't so crazy. Yes, yes, so it's not the UN attempting to eliminate our sovereignty; it's something far, f

It's only the US which has this peculiar "republic not a democracy" interpretaton. In the rest of the world, we've long been using the word "democracy" to mean any political system where people vote in free and fair elections, clarifying it as needed - i.e. US is a representative democracy, Greek city-states were direct democracies, etc.

Those were held in secret. We *knew* they were going on. But until they big flourish of signing the things we didnt really know what was in them.

Secrecy has its place (such as in the salt talks exactly what you were working on and how much of everything you had). But in the case of copyright negotiations? Come on...

Also correct me if I am wrong here but wasnt the DMCA because of a treaty? Yet suddenly all the other countries do not want it. So why exactly did we in the US get stuck with harsher rules? These are questions we should be asking our senators and congressmen.

Also correct me if I am wrong here but wasnt the DMCA because of a treaty? Yet suddenly all the other countries do not want it. So why exactly did we in the US get stuck with harsher rules?

I don't have the time to research it, but as a guess, I'd say you answered your own question without realizing it. The rules ended up so harsh here because of pressure from the likes of the RIAA and other media organizations to make them that way, then got signed into law. After years and years of 'field testing' the D

I think the difference is that most treaties affect the signing countries at a government level, whereas ACTA affects the signatories at an individual level; i.e. there are provisions in that treaty which will require many hundreds of thousands of individuals to change their behavior or face punishment. Yes, Arms Limitation obviously affects all the individuals in a country, but it doesn't take cooperation on an individual or corporate level to follow the treaty, nor is there punishment on an individual or

We can't have secret treaties become law in democratic countries. It would be the end of democracy as we know it.

Democracy has been getting ass raped by corporations and lobbyists for years.

Governments are more than willing to trash democratic principles and legal freedoms in the name of "national security" and "fighting terrorism" bogeymen. They have secret negotiations where they won't tell us what happened, but expect us to live with the outcome.

as the wealth gap between the poorest and the richer becomes wider, the developed nations are moving towards a form of corporate feudalism, where the general population becomes serfs of large conglomerates, subject to their rules, whose objective is to syphon money and power to themselfs, leaving to the people barelly enough to stay alive an feeding the corporate lords.

it's not paranoia or a conspiracy theory, is just how i see it, so feel free to disagree.

my rationale id that big money doesn't like democracy, they like money and power. mostly because power allows them to earn even more money, and both can become an adiction. a well organized democracy, with enlightened voters can be an obstacle to large corporations to earn more money and power, so they try to corrupt it. the result tends to a kind of feudalism.

to avoid this, it takes an educated people to vote for high taxation for large corporations and wealthy citizens. leave them enough to re-invest and create jobs, but not enough to corrupt the sytem. but i don't see this happing anytime soon anywhere in the world.

There is some truth to this, but it has its limits. Many people HAVE revolted against the big media companies, most stop buying their products, some resorting to internet piracy, some moving to radio (recording/listening). Their response however has been to simply attributed ALL of their losses to internet piracy (oh and embellished those losses beyond all reason), claiming that's why they needed new, invasive measures. Overall I highly doubt that this is over, the ACTA still contains many unpleasant mea

The DMCA stuff was merely the tip of the iceberg. There's still a lot wrong with this document -- like, making just linking to illegal content illegal, the conflation of counterfeiting (trademark law) with copyrights, internet "copyrights" and patents, the way infringement penalties are calculates (as lost sales), border controls on medicines and other products in transit, and let's not forget the despicable way in which the entire thing was written in total secrecy without input from the public (the stakeholders).

I personally refuse to allow ACTA to pass into law (i.e., member countries' laws will need to change, despite earlier claims to the opposite), because not only does it bring even more draconian enforcement of intellectual monopolies (which I disagree with at a philosophical level), but because it sets a terrible precedent that gives politicians and lobbyists even more freedom to take away our freedoms.

Aside from all the talk of Intellectual Property rights laws and protectionism, the video game company Turbine and the band Radiohead have a successful 'pay what you want' model that is profitable.
Lord of the Rings online has DOUBLED its revenue since becoming free to play online. You can then pay a-la-carte for upgrades, etc. but you can still play for free if you like.
An interesting business model that may be the the one model to rule them all...
http://www.joystiq.com/2010/10/07/lord-of-the-rings-online-doubles-revenue-since-going-free-to-pla/ [joystiq.com]

As a "non-treaty treaty" negotiated in secret without any attempt at public accountability or a public vote of adoption, ACTA represents an abuse of process and should be opposed even if all it did was support Motherhood and Apple Pie.

As a "non-treaty treaty" negotiated in secret without any attempt at public accountability or a public vote of adoption, ACTA represents an abuse of process and should be opposed even if all it did was support Motherhood and Apple Pie.

At first I read that as "Motörhead and Apple Pie" and was thinking that sounded like a pretty awesome treaty.

The submitter is talking about takedown provisions as "egregious." Considering the alternative to a takedown notice is just opening up with a lawsuit, I'm not sure what about it is so evilly anti-consumer.

The DMCA is quite draconian, and routinely exploited for censorship purposes to stifle free speech and open competition. Takedown provisions are not only anti-consumer, but also anti-free speech. Lawsuits are worse, so that leaves us between a rock and a hard place... It means we must have gone wrong somewhere else down the line, so we must back-track, repeal ("re-peel back") the latest copyright acts and work our way from there.

Considering the alternative to a takedown notice is just opening up with a lawsuit, I'm not sure what about it is so evilly anti-consumer.

If your ISP is served a take-down notice because of what you uploaded, you have to prove you have the right to do so. If however a lawsuit is required they have to prove you're guilty. Personally I prefer innocent until proven guilty.

Might this be a rare case of cooler heads having prevailed? One would certainly hope so, but that's probably not the real reason.

Regardless of what caused this backtracking, with the economy in the toilet, deterioration conditions in Afghanistan and a few other really urgent considerations like the upcoming mid-term elections, could the Obama administration have decided to pick battles to fight that will actually matter?

It kills me to realize that US power and influence is justifiably minuscule. My cun (-try) my cun (same), what have we done. But we're such a noble country. We invaded Iraq to unseat a ruthless tyrant. Is it our fault we didn't bother to formulate a plan that dealt with protecting the Iraqi people after the collapse of their government? We gotta do every little thing? It's not our fault we lied about intelligence reports and totally made up a pretense to justify invading a country that had absolutely n

They took out some parts related to fighting piracy (e.g. disconnecting pirates) but left the parts that are the least related to piracy and has the greatest impact on non-pirate-related uses:

when it comes to tools for doing the circumventing, these are broadly banned, even where some limited uses might be legal. This appears to set up a situation in which an ACTA signatory could allow people to bypass DRM to make backups or exercise fair use rights, but could not allow distribution of the tools to help the

Pitch something completely ridiculous and unacceptable instead of what you actually want. Tone it down gradually. Congratulations, now your awful idea is a compromise and a relief rather than an outrage.

Will someone please tell me which of our elected US representatives plan to sign this? I want to know so that I will never vote for them and so that I can encourage all my friends and family to never vote for them.

Do you think we ever make it past those policticans that punish us with laws?

New laws are very rarely, if any, removed once implemented. There is no way back after they did this to us. I am wondering if we are still allowed to watch DVD on Linux O.o since it is forbidden to circumvent protection technologies.

That brings up one of the few things I liked in the Republicans' Pledge to America [gop.gov]. It included this: "We will adhere to the Constitution and require every bill to cite its specific Constitutional Authority". I thought it also included a sunset clause for new laws, new laws would only be for a certain amount of tyme before they expired or were approved again, but I didn't find it this tyme.

The ACTA, like all other anti-piracy bills/treaties, is completely worthless. What will this do? Take away rights from the average citizens while pirates, as usual, find ways around these 'protective measures'. Going after people who don't hurt anyone to begin with and taking away rights from everyone is simply idiotic. Too bad the general public barely knows how to work a television remote, or perhaps they'd see the idiocy in this and do something about it.

Sadly, when it comes to tools for doing the circumventing, these are broadly banned, even where some limited uses might be legal. This appears to set up a situation in which an ACTA signatory could allow people to bypass DRM to make backups or exercise fair use rights, but could not allow distribution of the tools to help them do it.

That right there is the reason why we have to fight it. If they say "it's legal to circumvent DRM, but not to distribute tools to do it," then we'll have no ability to do so. We

It seems that the strong lobbyists are learning the limits of common sense. Canada's legislature is being hit by thousands of signatures asking / demanding that Canada not pursue the ACTA requirements, and that the status quo is already too demanding.
We do write-ins to provide sensible feedback to our law and policy makers. The Canadian government was shown to be an Axx licker to whatever the USA did in the areas of copyright, freedom of expression, patents, etc. Our prime-minister is a conceited indiv